Gray v. Southwest Airlines Inc.

33 F. App'x 865

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 4, 2002
• Docket: No. 01-15029; D.C. No. CV-97-02580-SMM
• Status: Published

Opinions

MEMORANDUM

*

Plaintiff and appellant Manuel Gray and his travel companion Jacob Smith were selected for a luggage search before boarding a Southwest Airlines flight in 1997. Alleging race-based profiling, Gray filed suit, asserting several common law and federal law claims, all of which were dismissed. Gray appeals, on four grounds, the district court’s adverse judgment following a bench trial.

Southwest Passenger List

During discovery, while representing himself shortly after his first attorney withdrew from the case, Gray sought access to “what the computer revealed for every other passenger on my flight when they checked in.” Southwest Airlines objected to the request, citing FAA regulations concerning dissemination of this information. Gray later hired another attorney, for whom the discovery deadlines were extended. But neither Gray nor his second attorney moved to compel disclosure of the passenger information, as allowed under Federal Rule of Civil Procedure 37. Gray argues that he effectively filed such a motion two years later, after discovery had closed, when he wrote in a reply to a Southwest motion to reopen discovery for a limited purpose, that “Plaintiff again requests that the court have Defendant comply with the original request for production.” However, even if this statement is construed as a motion to compel disclosure, Gray clearly missed the trial court’s discretionary deadline for filing such a request, even though he was represented by counsel for seven months before discovery had closed. The court did not abuse its discretion in denying this motion.

FAA Security Directives

During discovery, Gray also sought disclosure of the FAA Security Directives pursuant to which Southwest contends he was searched. Because FAA regulations prohibit the disclosure of the Directives to the public, the trial court issued a protective order under which Gray’s counsel, but not Gray, could have access to the directives. Gray contends that the trial court erred in refusing to allow him to see the directives after he became a pro se litigant, and that the court erred in permitting his second counsel to withdraw given the existence of the protective order. Both decisions are reviewed for an abuse of discretion. Empire Blue Cross & Blue Shield v. Janet Greeson’s A Place For Us, Inc., 62 F.3d 1217, 1219 (9th Cir.1995) (protective orders); Washington v. Sherwin Real Estate, Inc., 694 F.2d 1081, 1087 (7th Cir.1982) (counsel’s motion to withdraw).

Given that we have concluded that it was not an abuse of discretion for the district court to deny Gray access to Southwest’s passenger information, the trial court’s decision to deny Gray access to the FAA directive was not prejudicial. Without the passenger information, Gray would have been unable to demonstrate a discriminatory application of the FAA guidelines. Thus, access to the directive itself would have been useful only for demonstrating a facially discriminatory regulation. Since the regulation in question is entirely race-neutral, a denial of access to the regulation was not prejudicial, and we must affirm the decision of the trial court. Kulas v. Flores, 255 F.3d 780, 783 (9th Cir.2001) (“We ... reverse [on the basis of a discovery ruling] only if the district court’s ruling more likely than not affected the verdict.”).

The dissent to this memorandum argues that denying Gray access to the FAA Directives and the Southwest passenger information may be contrary to due process of law. We note that, even absent Gray’s numerous procedural violations, which effectively waived this argument, due process of law does not always require access to critical evidence. In Freedom of Information Act cases, for example, “the plaintiff must argue that a government agency has improperly withheld requested documents, even though only the agency knows their content.” Schiffer v. Federal Bureau of Investigation, 78 F.3d 1405, 1408 (9th Cir.1996). “To address this problem, courts have created methods to be sure the requesting party and the deciding judge have sufficient information upon which to determine whether the government agency properly withheld the requested documents.” Id. These methods include a Vaughn index, describing the documents withheld, as well as the possibility of in camera review of the documents by the district judge.

Jury Trial Request

Gray contends that he requested a jury trial, and that the trial court erred in not holding one. To the contrary, Gray’s counsel waived Gray’s right to a jury trial by not requesting one within ten days after filing the complaint, as required under Federal Rule of Civil Procedure 38(b). Although Gray made reference to his desire for a jury trial during a pre-trial status conference, at no time did he make an explicit request. FRCP 38(d). He also did not object at any time before or during the bench trial. Even construing his passing reference to a jury trial as a late motion for a jury trial, which the judge had the discretion to grant under FRCP 39(b), we conclude that the judge did not abuse that discretion by failing to hold a jury trial, as there was no showing that the waiver was due to anything but trial counsel’s strategy or mistake or inadvertence. Lewis v. Time, Inc., 710 F.2d 549, 556-57 (9th Cir.1983).

Admission of Videotaped Deposition

Gray contends that the trial court erred in admitting the videotaped deposition of one of Southwest’s witnesses. He is wrong. Under FRCP 32(a)(3), a court may admit at trial, the deposition of a party who is more than 100 miles away from the location of the trial. Southwest’s witness testified at the deposition that she would be moving out of state before the trial; therefore Southwest satisfied its burden as the offeror of the deposition, and it was not error for the trial court to admit it. See In re Transcontinental Energy Corp., 683 F.2d 326, 330 (9th Cir.1982).

For the foregoing reasons, we affirm the judgment of the district court.

AFFIRMED.

REINHARDT, Circuit Judge, dissenting.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.